ICC Prosecutor To Charge Sudan’s President with Genocide

by Kevin Jon Heller

I mentioned last month that the ICC Prosecutor, Luis Moreno-Ocampo, was considering bringing genocide charges against Sudanese officials far more senior than Ahmed Haroun, the country’s “humanitarian affairs” minister. Well, he’s now decided to do exactly that — and his target is no other than Omar Hassan al-Bashir, the President of Sudan himself:

The chief prosecutor of the Internationals Criminal Court will seek an arrest warrant Monday for Sudanese President Omar Hassan al-Bashir, charging him with genocide and crimes against humanity in the orchestration of a campaign of violence that led to the deaths of hundreds of thousands of civilians in the nation’s Darfur region during the past five years, according to U.N. officials and diplomats.

The action by the prosecutor, Luis Moreno-Ocampo of Argentina, will mark the first time that the tribunal in The Hague charges a sitting head of state with such crimes, and represents a major step by the court to implicate the highest levels of the Sudanese government for the atrocities in Darfur.

[snip]

“I will present my case and my evidence to the [ICC] judges, and they will take two to three months to decide,” Moreno-Ocampo said in an interview Wednesday, referring to a pretrial panel made up of judges from Brazil, Ghana and Latvia. “We will request a warrant of arrest, and the judges have to evaluate the evidence.” On Thursday, Moreno-Ocampo’s office said in a statement that the prosecutor will “summarize the evidence, the crimes and name individual(s) charged” at a news conference Monday in The Hague.

Wow. To say this is a bold move — and one fraught with danger — is an understatement. I’ve long disagreed with Julian about whether the ICC’s involvement in Darfur undermines the peace process (which is better referred to as the “peace process,” because the Sudanese government has never been committed to it). But this time I think Julian’s concerns have to be taken very seriously. The UN is certainly worried:

Some U.N. officials raised concerns Thursday that the decision would complicate the peace process in Darfur, possibly triggering a military response by Sudanese forces or proxies against the nearly 10,000 U.N. and African Union peacekeepers located there. At least seven peacekeepers were killed and 22 were injured Tuesday during an ambush by a well-organized and unidentified armed group.

[snip]

Representatives from the five permanent members of the U.N. Security Council — Britain, China, France, Russia and the United States — met with U.N. officials Thursday to discuss the safety of peacekeepers in Darfur. U.N. military planners have begun moving peacekeepers to safer locations and are distributing food and equipment in case the Sudanese government cuts off supplies.

“All bets are off; anything could happen,” said one U.N. official, adding that circumstantial evidence shows that the government of Sudan orchestrated this week’s ambush. “The mission is so fragile, it would not take much for the whole thing to come crashing down.”

If there was a reasonable chance that indicting Bashir would convince China and Russia to discontinue their economic, political, and military support for Khartoum, these risks might be worth it. But that is obviously unlikely to happen — both countries have consistently opposed the ICC’s efforts in Darfur and will no doubt oppose this new move, as well.

As a side note, I am very anxious to find out what evidence the Prosecutor has that ostensibly proves Bashir is guilty of genocide. As I pointed out in my previous post, the Security Council-sponsored International Commission of Inquiry on Darfur specifically — and controversially, to be sure — recommended that the ICC not pursue genocide charges against the Sudanese government:

The Commission concluded that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control. These two elements are, first, the actus reus consisting of killing, or causing serious bodily or mental harm, or deliberately inflicting conditions of life likely to bring about physical destruction; and, second, on the basis of a subjective standard, the existence of a protected group being targeted by the authors of criminal conduct. However, the crucial element of genocidal intent appears to be missing, at least as far as the central Government authorities are concerned. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare.

Though I’m sympathetic to those who want to call the atrocities in Darfur “genocide,” I’ve always found the Commission’s legal analysis of the situation quite persuasive. So I hope that the Prosecutor’s subsequent investigations have uncovered new evidence that the Sudanese government was not simply — if murderously — trying to maintain its power in the face of a concerted rebel threat. If they haven’t, it will look like Moreno-Ocampo is simply giving into political pressure.

Once again — wow. I don’t know what else to say. First the Court stays the Lubanga trial. Now the Prosecutor seeks to indict and arrest the President of the Sudan. This is turning out to be quite a week for the ICC…

29 Responses

And this had to happen on my final working day in the Hague! What about the immunity issue here? Is that no longer an issue (with ref. to the Arrest Warrants Case para. 51)? Or will OPT have to argue that this is “private acts”, rather than public?

7.11.2008
at 7:25 am EST Erlend

Erlend,

There is no immunity issue here, because the Arrest Warrant Case only concerns domestic prosecutions. No international tribunal has ever recognized Head-of-State immunity. Here is Article 27 of the Rome Statute:

Article 27

Irrelevance of official capacity

1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

2.Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

7.11.2008
at 7:35 am EST Kevin Heller

Ah, Article 27 of the statutes

7.11.2008
at 7:37 am EST Erlend

Thanks, the relevant part of the ICC statute is even cited in the Arrest Warrant Case para. 61

7.11.2008
at 7:45 am EST Erlend

Kevin,

Well, there actually might be a bit of an immunity problem here. It’s true that the ICC Statute waives immunity, but it does so only in relation to states parties to the statute, which Sudan is not. Likewise, the UN ad hoc tribunals also did not recognize immunity, but they were set up by a Chapter VII resolution of the Security Council, which under Articles 25 and 103 of the Charter prevail over contrary international rules.

So, as a non-party to the Rome Statute, Sudan can quite plausibly assert that it did not waive the immunity of its president, who cannot be tried by a court set up by a bunch of third states. The answer to that is that the Security Council, acting under Chapter VII, referred the Darfur situation to the ICC, and by doing so implicitly overruled Bashir’s immunity. Thus the argument for denying Bashir immunity is not as simple as saying that Art. 27 of the Statute does so – it couldn’t without the Security Council’s involvement, as the ICC Statute cannot bind a non-state party.

7.11.2008
at 8:36 am EST Marko Milanovic

Kevin,

There is an immunity issue here and the answer is not all that straightforward. The ICJ in Arrest Warrant did say that there is no immunity before certain international tribunals and referred to Art. 27. However, I have argued in my article on “International Law Immunities and the International Criminal Court”, (2004) 98 AJIL 497 that Art. 27 can only bind parties to the Statute and that non-parties remain entitled to the immunities that they would possess under customary international law. Remember that the immunity is a right of the State and not that of the individual. Other States cannot remove that immunity by a treaty to which the State possessing the immunity is not a party. Sudan is not a party to the ICC Statute and the Court has jurisdiction over the situation regarding Darfur by virtue of a Security Council resolution.

There is the argument that international law immunities only apply before national courts and not before international tribunals. This argument is unpersuasive because it suggests that 2 States may join together create, by treaty, an international tribunal to prosecute the Head of State of another State. That would be regarded as untenable. Its difficult to see why it makes a difference if there are 60 States (as required for the entry into force of the ICC Statute) or 106 (as are currently parties to the Statute). In Prosecutor v. Blaskic, the Appeals Chamber of the ICTY accepted that international law immunities can be pleaded before an international tribunal. They were not talking there about immunity with respect to the criminal charges in question but rather about production of documents and other official acts. Be that as it may, the point is that they accepted that individuals can be immune from the jurisdiction of international tribunals, the immunity issue arises there. However, in Krstic the Appeals Chamber of the ICTY said that immunity ratione materiae does not apply before international criminal courts. I think all that latter case stands for is that immunity ratione materiae does not apply to international crimes. The Head of State of course possesses immunity ratione personae which is deemed to be absolute.

Does all this mean that the Oman Bashir is immune from ICC jurisdiction? Although Art. 27 does not remove that immunity, the immunity may be removed, or may be regarded as having been removed by Security Council Resolution 1593 that refers the case to the Court. The SC is competent to remove the immunity of serving heads of State as it did with the ICTY/ICTR. Ultimately that removal of immunity is based on being a party to the Charter and accepting the binding authority of the SC under Chapter VII. But has the SC removed the immunity here? Its not a straight forward matter. Res. 1593 does not do this explicitly. I think there are 2 possible ways of arguing that the SC has removed the immunity (i) is to say that an SC reference to the ICC means that the State concerned is bound by the provisions of the State and by Art. 27; (ii) it may be argued that when the SC decided in Res. .1593 (operative para. 2) that the Govt of Sudan must cooperate with the Court that includes a lifting of the immunity.

7.11.2008
at 8:49 am EST Dapo Akande

Marko,

I think it’s a distinction without a difference. My point was simply that whenever the Court properly has jurisdiction over a suspect, for whatever reason, Article 27 applies. To be sure, the Court only has jurisdiction over Bashir because of the Security Council referral. But I don’t think it’s correct to say that the Security Council “implicitly overruled Bashir’s immunity,” even if that was the practical effect of the referral. Article 27 overrules the immunity, not the Secrity Council. Do you disagree?

7.11.2008
at 9:00 am EST Kevin Heller

Kevin,

I don’t think the distinction is meaningless (obviously :)), and I don’t think that Article 27 would apply whenever the Court has jurisdiction over a situation. For example, if the UNSC had in Res 1593 explicitly stated that its referral of the Darfur situation to the ICC would NOT affect the immunities of heads of state, Bashir would be immune before the ICC, even though the Court would have jurisdiction over the Darfur situation. Likewise, if the Council now passed a new resolution reaffirming the customary rules on immunity in relation to Darfur, but not withdrawing its earlier referral, Bashir would again be entitled to immunity. As Dapo notes in his more detailed (simultaneous) post on the issue, this is not a straight-forward matter.

7.11.2008
at 9:12 am EST Marko Milanovic

Dapo,

I obviously lean toward your first argument, that the SC referral means that all defendants prosecuted via the referral are bound by the provisions of the Rome Statute, whether that provision governs immunity or a mens rea requirement.

Am I just being dense? This doesn’t seem like a difficult issue to me. Again, if the Court properly has jurisdiction over someone, Article 27 applies — and it doesn’t matter if it has jurisdiction because the perpetrator is a national of state party, because the perpetrator committed the crime on the territory of a state party, or because the Security Council has referred a situation to the Court.

The second form of jurisdiction is interesting. Do you think that Article 27 does not apply to a national of a non-state party who commits the crime on the territory of a state party? Given your argument that “Art. 27 can only bind parties to to the Statute and that non-parties remain entitled to the immunities that they would possess under customary international law,” it seems that you would have to take that position.

Your thoughts?

7.11.2008
at 9:15 am EST Kevin Heller

Marko,

I’m excited that we finally completely disagree about something! I do not believe that the SC can impose conditions on a referral, such as Article 27 not applying. Nothing in the Rome Statute says that it can, and the Security Council did not create the Court (in contrast to the ICTY and ICTR). Nor do I think that a later resolution would have any affect on a defendant’s status before the Court, because the Court applies the Rome Statute, not customary international law. In my view, the Security Council can refer a situation or not refer a situation — that’s it. Once it has referred a situation, therefore, the Rome Statute — and only the Rome Statute — applies. There is no provision in the Rome Statute that permits the Security Council to “unrefer” a situation or to modify the terms of the Court’s jurisdiction post-referral. Its only recourse, therefore, would be to defer the prosecution under Article 16.

Your riposte?

7.11.2008
at 9:29 am EST Kevin Heller

Marko,

It would be interesting, of course, if the Security Council passed a resolution deeming the application of Article 27 a threat to international peace and security. Then I might buy the argument that the Security Council can override the Article…

7.11.2008
at 9:32 am EST Kevin Heller

Kevin,

I share your enjoyment at our belated disagreement :). My first riposte is this – the source of the referral power is actually NOT the ICC statute itself. It just facilitates the process from the side of the ICC itself. The substantive source of the power is the UN Charter. Thus, Article 13(b) of the Statute speaks of a referral ‘to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.’ That power is the same power used by the Council when it created the ad hoc tribunals. Only that power could give the ICC an authority that it couldn’t otherwise have, as a court created by a treaty.

Secondly, I think you should be a bit wary of saying that the ICC can only apply the Statute, and not CIL. To paraphrase a WTO ruling, the Statute is not self-contained regime, to be read in clinical isolation from the rest of international law. Moreover, as with the ad hoc tribunals, the provisions of the Statute which set out the elements of crimes are jurisdictional in nature — all of these crimes substantively exist in customary law.

Finally, if I can intervene in your debate with Dapo, the reason that the ICC can have jurisdiction over nationals of non-state parties is because the jurisdiction of states parties that they have transferred to the ICC is not limited to their nationals. So, if an American committed an international crime in the Congo, he could be tried before the ICC, because the Congo has the right to try that person under international law, and it is a party to the ICC statute. But the Congo would not have the right to try George W. Bush, for example, for crimes allegedly committed by some of his subordinates in the Congo, because as a serving head of state he would be immune from Congolese jurisdiction. GWB would likewise be entitled to immunity before the ICC, Article 27 notwithstanding, as Congo could not have transferred to the ICC the power that it itself doesn’t have.

Your reply?

7.11.2008
at 9:47 am EST Marko Milanovic

Kevin,

I do not agree that whenever the Court has jurisdiction Art 27 applies. Where the perpetrator is the Head of State of a non-party who is alleged to be responsible for crimes within the jurisdiction of the Court, the Court has jurisdiction. However, there seems to me to be no basis for saying that the Head of State of the non-party is not immune whilst in office. The answer cannot lie in Art. 27. Art. 27 cannot create obligations for non-parties. To say that the immunity is removed by Art. 27 is to say that a treaty to which a State is not party removes a right that the State is otherwise entitled to.

Alternatively, it could be argued that there is no immunity in the first place because this is an int. tribunal. I think this is incorrect and addressed this point in my earlier comment. I would add that the very presence of Art. 27 suggests to me that this argument is not right. There would be no need for Art. 27 if immunity cannot be pleaded before an international court. Unless you say its included merely out of an abundance of caution.

7.11.2008
at 9:47 am EST Dapo Akande

Marko,

Two related questions — to which I’d genuinely appreciate your answers. Article 13(b) of the Rome Statute says that the Court may exercise jurisdiction when “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” If Article 13(b) didn’t exist, could the Security Council pass a resolution requiring the Court to exercise jurisdiction over that situation anyway? And if it could, could it go further and pass a resolution requiring the Court to prosecute specific crimes and specific perpetrators?

7.11.2008
at 9:51 am EST Kevin Heller

Kevin,

Given that the ICC is not a party to the UN Charter, my view is that the Security Council cannot require the Court to do anything except to the extent that the ICC Statute requires the Court to act on the Security Council’s bidding.

However, it is also important to recognise that the Security Council’s Charter powers are not limited by the ICC Statute. So with regard to Art. 16, the SC can pass a resolution requesting a deferral which does not comply with Art. 16 and which is legally effective in some senses. If the Council were to require a termination of the prosecution and require UN members not to cooperate with the Court, that would be a binding obligation on UN members though not on the Court. So UN members would be bound not to transfer defendants or hand over evidence.

7.11.2008
at 10:01 am EST Dapo Akande

Ooooh, I love this little menage a trois that we are having!

Kevin,

The answer to your two questions is ‘no.’ The ICC is an international organization which is neither a part of the UN nor a party to the Charter. The UNSC couldn’t issue it any commands as such — though it could still order member states to do something, such as prosecute specific crimes either before their own courts or before a tribunal they set up jointly. It could also prohibit them from cooperating with the ICC, pursuant to Art. 103 of the Charter, but it could not suspend an ICC investigation as such, as it can do now under Art. 16 of the Statute.

That is also why Art. 13(b) was necessary – it provides a link between the Statute and the Charter. But the Charter is the link between the Council and the UN member states. Without it, there would be no power of referral.

7.11.2008
at 10:03 am EST Marko Milanovic

Marko,

If I read you correctly, you must believe that the Security Council could, by invoking Chapter VII, force the Court to prosecute specific perpetrators for specific crimes. I’m not sure that you are wrong — but I find that position deeply troubling, because it means that the Court is only as independent from the Security Council as the Security Council allows it to be.

I’m sticking to my guns on the CIL point — basically. Article 21 of the Rome Statute certainly permits the Court to consider CIL when a substantive legal question cannot be answered by reference to the Statute or the Elements of Crimes. But CIL cannot modify the provisions of the Statute or Elements, as Article 21(a)’s “in the first place” language makes clear. (For my argument as to why the “unless otherwise provided” language in Article 30 does not refer to CIL, see my forthcoming essay on mistake of law in JICJ.)

Back to you, my friend…

7.11.2008
at 10:04 am EST Kevin Heller

Marko,

If the SC could not refer a situation with a command to the Court to prosecute specific individuals for specific crimes, why could it refer a situation with a command to the Court to permit a defendant to invoke Head of State immunity?

Dapo,

Agreed!

7.11.2008
at 10:08 am EST Kevin Heller

Marko,

Agreed with your last point, as well. Damn simultaneous comments!

7.11.2008
at 10:10 am EST Kevin Heller

Kevin,

You misunderstand me, I meant just the opposite (sorry if my above post was unclear). The Council cannot order the ICC to do anything under the Charter itself, it can only order the member states. But it can order them (so long as the resolution is not ultra vires, etc., which raised the issue of judicial review that Dapo in particular has written quite a bit about) not to cooperate with the ICC, because member state obligations under the Charter prevail over their obligations under the ICC Statute.

And, btw, this is starting to seem a bit unfair, as Dapo and I are clearly operating under a telepathic link. Rest assured we are not ganging up on you consciously…

7.11.2008
at 10:13 am EST Marko Milanovic

Which post was unclear? I was responding to this:

For example, if the UNSC had in Res 1593 explicitly stated that its referral of the Darfur situation to the ICC would NOT affect the immunities of heads of state, Bashir would be immune before the ICC, even though the Court would have jurisdiction over the Darfur situation. Likewise, if the Council now passed a new resolution reaffirming the customary rules on immunity in relation to Darfur, but not withdrawing its earlier referral, Bashir would again be entitled to immunity.

That statement, I thought, implied that the Security Council could order the Court to permit a defendant to invoke Head of State immunity. Am I wrong about that?

7.11.2008
at 10:18 am EST Kevin Heller

Kevin,

Ah, sorry — we have to be more specific with this rapid posting. So, in response to your 10:18 post – the Council would not be ordering the Court, as it is only the Council who could (or did) revoke Bashir’s immunity. If it now passes a resolution interpreting Res 1593 as NOT being an implicit waiver of immunity, the Court would have to agree. It is only if you argue that immunities BY DEFINITION do not apply before international tribunals (a position that Dapo has proven wrong, in my view) that the Council’s views on the matter or immaterial.

So, what’s your position on the hypo that Res 1593 DID explicitly state that customary immunities of heads of state are untouched by the referral?

7.11.2008
at 10:25 am EST Marko Milanovic

Luis Moreno-Ocampo is asserting that no one is above the law in bringing these charges. This could be foreseen in the Chautauqua Statement of this past August signed by him and other present and former international criminal prosecutors. He is raising the stakes on the political will of the international community to not just do jaw jaw or waw waw but law law (playing with a Churchill quote).

If he pulls this off, then he his setting a marker for another kind of case I believe. There is a great deal of bruiting of a full blanket Bush pardon coming out just before he leaves office in January 2009 for anyone who near or far was part of the common plan of the policy of cruelty (using Alberto Mora’s term).

Take all of the analysis above by the distinguished gang of three and apply to the scenario while replacing “al-Bashir” with “Bush” and “Sudan” with the “United States” and “genocide” with “torture” for example and you can see just how far Moreno-Ocampo’s act resonates. I was thinking last night that in a setting of a Presidential domestic pardon under the Constitution, the persons involved could still be referred to the ICC for prosecution by other state members, by a Security Council referral, or maybe even by the United States executive in a future administration on an ad hoc basis.

Best,

Ben

7.11.2008
at 10:31 am EST Benjamin Davis

The UN is certainly worried:

Politicians always are worried about law finding them and disrupting their sordid [if oftentimes necessary deals]. Law creates greater costs for the old corrupt way of doing business. Hopefully the next step will be war crimes charges against certain U.S. soon to be former officials.

7.11.2008
at 11:41 am EST stevelaudig

The indictment of Sudan’s president comes as a dangerous and unhelpful development on the issue of Darfur and the unfortunate victims in that troubled region of Sudan
Very informative stuff when it comes to the legal side of this issue. Aside form the humanitarian aspect of this case, however we must not forget that Sudan, the state, is entitled to preserve its geographical unity and prevent any party domestic or international to break the country up.
100s of thousands of Americans died in a civil war that commenced to preserve the unity of the country and prevent its dismemberment.
International law however, as it appears to be , is there to hammer weak and third world countries alone. International law, so it seems, is there to preserve the interest and the power of big powers against helpless nations.

Take for example Israel, it is a country that violates international law by continuing its occupation of Palestinian lands, while declaring Jerusalem as its capital where international law clearly states that it is illegal to do so, and when it comes to the wall Israel is building on occupied territories, international law sided with the Palestinian argument and declared the wall as an illegal, yet Israel simply ignored it , and no one or country is willing to do anything abut it.

More, there are legal arguments against those responsible for the invasion and occupation of Iraq, a country that did not attack or threatened the United States. So, we see that for political considerations, western powers can get away with virtually anything, but poor nations would have to bear the full brunt of the law.

7.14.2008
at 10:41 am EST Ali

dear Ali,
I am a student from Iran and I suppose that this means that I am to stick up for legal norms and rules more than anything else while I agree with most of your ideas about real world;
of course it is true that a lot of people died in 19th century in civil war in Indians land and so on… but we are living another era of the history! I strongly suggest you Humanization of International Law by Meron. how ever I agree on the Israeli issue, I am from Iran, a country which has been threatened by Israel militarily for his nuclear activities (we`ll see that does not work on Iran!) but it has nothing to do with the fact that International law is moving in a direction that does not allow incidents that take 100s of thousands of victims; no matter who is involved in that!
in my view it is not just genocide, it is about every Sudanese kid who`s been forgotten and left from decent educational system, from self development and peace. every human being understands and sees the world just like you and me and has the right to all of the rights you claim for a human; I think you should see things from another angle. a very talented young girl is deprived of proper education in Sudan and it is as horrible as all the killings and dying in all the civil wars and world wars was, …
it is a new world we are living.

Thanks for the reply, and I must say that I too, is all for the rule of law when it is applied for everybody and not cherry picking as in this case. We know that the US and several other countries have signed agreements among themselves to exempt the US and others from the long hand of the law if ever a crime were to be committed in an international setting.

From a legal perspective, that’s not fair of course, but from political point of you, yes, the US has the right to protect itself, its interests and its soldiers from prosecution abroad. But the issue here is legal, it is about the rule of law, not politics, which is why, in my opinion Sudan and its president are being targeted.

7.15.2008
at 12:08 pm EST Ali

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